The Trial of German Major War Criminals

Sitting at Nuremberg, GermanyAugust 23, 1946

Two Hundred and Tenth Day:
Friday, 23rd August, 1946(Part 1 of 10)

[Page41 ]

THE MARSHAL: May it please the Tribunal, the defendants Hess
and von Papen are absent.

DR. SERVATIUS (counsel for the NSDAP): Mr. President, may it
please the Tribunal, yesterday I had spoken about the
individual war crimes and now I shall turn to the activities
of Einsatzstab Rosenberg, beginning on Page 39 of the
written script.

The activity of Einsatzstab Rosenberg was no official Party
matter. As the defense counsel of the defendant Rosenberg
has already explained, this has to do with an order of
Hitler's giving personal instructions to Rosenberg and not
to a Party agency. This is shown in Document 136-PS, which
is a letter of Hitler's of 29th January, 1940, and in the
Fuehrer decree of 1st March, 1942, Document 149-PS. It is
confirmed by testimony given before the Commission by the
witness Dr. Miller and by Graf von Roedern. An affidavit of
the witness Kuenzler (No. 58-A) is to the same effect,
stating that the offices of the Reich Treasurer knew that
this order was intended for Rosenberg personally.

And indeed the Einsatzstab Rosenberg was not a Party
organization. The members were scientists and specialists
who had nothing to do with the Party and who in some cases
were foreigners. All had been recruited on the basis of the
compulsory emergency service law.

The leader of the Einsatz in Paris was not a "Political
Leader." This special section was distinguishable by a
uniform of its own.

From the financing of the Einsatzstab Rosenberg through the
Reich Treasurer of the Party, the prosecution concluded that
Political Leaders were involved. But Document 145-PS shows
that it was only an advance of money and that the Rosenberg
Ministry, as a State office, had to bear the costs. This was
corroborated by the witness Kuenzler, a leading official in
the Party finance administration, in Affidavit 58-A. The
witness Dr. Muller, consultant for matters of private
property, testified to the same effect before the
Commission.

To prove direct participation of the Political Leaders, the
prosecution referred to Document 071-PS, according to which
the final settlement of the confiscations which had been
carried out by Einsatzstab Rosenberg should be made by the
Gauleiter. The preface of this document, however, shows that
it applies only to the confiscations within German territory
of property belonging to "ideological opponents." It is
connected with Document 072-PS, which merely contains a
proposition in connection with the Church question. This
proposition does not suggest that the Gauleiter should
confiscate things, but that they should look after them
until they were taken into custody by a more competent
authority, in order to prevent destruction.

These documents cannot refer to lootings abroad since no Gau
offices existed there to which any such instructions could
be given.

Finally, may I point out that no orders had been given as to
the ultimate destination of these items. The witnesses
Muller and Kuenzler stated before the Commission that they
were to be dealt with in the peace negotiations. There
remains the programme concerning furniture (Mobelaktion)
mentioned by the

[Page 42]

prosecution, whereby the furniture of 70,000 households in
France was away. This was a programme of the Eastern
Ministry, and was carried out its own personnel.

In reference to prisoners of war, other defense counsel have
already made the juridical situation clear, and have shown
that the Political Leaders were not concerned with them.

But the prosecution has confronted the Political Leaders
with Document 656, which is a directive of the OKW from the
year 1944. It gives men of the guard the right of self-
defense, in view of the incitement by enemy propaganda to
prisoners of war to use force. In cases of extreme
emergency, use of arms is permissible. The Political Leaders
are in no way connected with this directive and its
execution.

I have defined in detail my attitude with reference to
foreign workers, in my capacity as defense counsel for
Sauckel.

The witness Hupfauer has testified before the Commission and
before the Tribunal regarding actual conditions. I further
refer to Affidavits 55, 55a and 55d, which summarize 15,000
statements under oath. They give a reliable picture of the
general living and working conditions of these foreign
labourers. Everything contradicts a systematic programme of
negligence and ill-treatment or a general approval of the
conditions which have been alleged to exist.

It is necessary to make a special statement with reference
to Document 68-EC. This is a directive of the State Farm
Association of Baden, of 6th March, 1941, regarding
treatment of Polish agricultural workers. It is an
individual measure and it originates from a time prior to
the unified regulations for the employment of labour. It
does not originate from a Party office, the State Farm
Association being an independent professional organization
outside the Party's formations. The directive itself was
rescinded by the subsequent regulations for all foreign
workers.

It has been firmly established on the basis of the evidence,
however, that this directive in practice was not carried
through with the approval of the Political Leaders. Here
reference is made to the testimony of a number of Political
Leaders from the Gau Baden, which has been collected in
Affidavit 68. I further refer you to the testimony of the
witness Mohr (State Farm Association - Bavaria) who was
heard before the Commission, to the testimony of Gauleiter
Wahl for the Gau of Schwaben, and to the testimony of
Ortsgruppenleiter Wegscheider for the Allgau.

With reference to the interruption of pregnancy in foreign
female workers it is shown from the "Confidential
Information of the Party Chancellery" of 9th December, 1943,
that such interference was only carried through at the
express wish of the person concerned. The list annexed to
the document also shows that interference was the exception.

The accusations of the lynching of airmen who made emergency
landings is the last war crime which particularly
incriminates the Political Leaders.

We are not concerned here as to whether the attacks of
airmen against the civilian population were admissible, or
whether the rage of the population was justified, but only
with the fact that a killing of these airmen by the
population was permitted. It remains now to clear up the
question -

THE PRESIDENT: Dr. Servatius, you are passing from the
treatment of foreign workers to another part of your speech.
The Tribunal would like to know what your case is with
reference to the treatment of foreign workers by the
Political Leaders, and whether you contend that they did not
assist in placing and controlling the labourers who were
brought to Germany under the forced labour program.

DR. SERVATIUS: I deny that they participated in the rounding
up and bringing in of these labourers. They only had the
duty of supervising the welfare of these workers, and I
assert that they carried out this duty.

[Page 43]

THE PRESIDENT: You agree then that they undertook the duty
of supervision of the labourers?

DR. SERVATIUS: Yes. After all, in the case of Sauckel, a
number of Gauleiter were heard on the subject, all of whom
have confirmed the fact that they were authorized to act in
the employment of workers and that they took care of their
welfare. That was dealt with m detail in the case of
Sauckel.

I am just given to understand that I did not understand your
question. It is a question of guarding. Mr. President,
should I have commented on the guarding of the foreign
labourers?

THE PRESIDENT: The words I used were whether you contended
that they had not assisted in placing and controlling the
labourers who were brought to Germany under the forced
labour programme.

DR. SERVATIUS: Then I understood you correctly, Mr.
President, and my answer can stand as I gave it.

THE PRESIDENT: You do agree that although you say they did
not assist in the rounding up, I think that was the word you
used, or the bringing in of the labourers to Germany, they
did assist in the supervision and controlling of the
labourers when they had been brought to Germany?

DR. SERVATIUS: Yes. As the persons authorized for the
employment of labour they had the duty of supervising. They
had to check whether the Labour Front and the factory
leaders were caring for the workers properly. They had no
direct responsibility, only an additional duty as Sauckel's
agencies. In this way Sauckel wanted to check whether his
instructions were being carried out.

THE PRESIDENT: Are you contending that they did not know the
labourers had come there involuntarily?

DR. SERVATIUS: I do not deny that they came because they
were obliged to. I admit that the Gauleiter had to know and
did know that the majority of the workers came on the basis
of a compulsory service law.

THE PRESIDENT: Thank you. I think you got to the bottom of
Page 44 or near it.

DR. SERVATIUS: I was dealing with the question of lynch
justice.

THE PRESIDENT: Top of Page 44, in the English.

DR. SERVATIUS: I was on Page 44. I said it remains now to
clear up the question of whether such war crimes were
generally tolerated and approved of by the Political
Leaders.

The prosecution has submitted five documents in this
connection.

Firstly, a directive of 13th March, 1940, from the Party
Deputy of the Fuehrer Hess, Document 062-PS. It concerns a
secret directive regarding the behaviour of the population
towards shot-down aircraft and towards parachutists, and
with reference to the latter it contains a directive that
they are to be either arrested or "made harmless."

In order to understand these words which are dubious today,
one has first to consider that we are here concerned with
enemy soldiers who have been set down in order to carry out
a combat action. It is hardly possible for the civilian
population to arrest them and we therefore have to
understand the expression to mean that other methods for
safety have to be taken in order to avoid their being
injured.

For the purpose of explanation it is essential to note that
during the year of 1940, in view of the then prevailing air
situation, one could only theoretically count on such
happenings; it was a preventive measure which, according to
the document itself, followed the French directives.

[Page 44]

The passage in the document asking for special secrecy can
perhaps be explain by the fact that the civilian population
had received a directive which might have caused them to be
combatants. Actually no events have come to light since then
showing that a violation of International Law was committed
against airmen. Furthermore, the "Confidential Information
of the Party Chancellery" of 4th December, 1942, speaks
clearly against such a measure. It specifically rejects a
measure against airmen which was taken in Japan.

The later documents, however, openly approving of and giving
incitement to war crimes, have to be judged differently. In
this case examination of the documents has to determine to
what extent the Political Leaders had knowledge in general
or were participants.

Himmler's order, dated 10th August, 1943, Document R-110, is
addressed to the Higher SS and Police Chiefs. According to
this, the "competent Gauleiter" had to be informed; but only
those were competent who held official position, that is,
Reich Defense Commissioners and Reich Governors
(Reichstatthalter). Therefore this had nothing to do with
activity in the political sector.

The Party Chancellery would have been competent for such an
incitement. Thus the conclusion is to be drawn that not all
Gauleiter were informed and in any case no Kreisleiter nor
the subordinate Party offices. I draw your attention to the
evidence of the witness Hoffman during his interrogation of
2nd July, 1946.

The other Gauleiter too have confirmed in this connection
that they were informed of Himmler's directives to the
police officers only in their capacity as Reich Defense
Commissioners.

Bormann's circular of 30th May, 1944 (Document 057-PS) was
intended to inform all Political Leaders that they should
tolerate the lynching of airmen; it was the result of
Goebbels's Press article of the previous day.

THE PRESIDENT: I am not quite sure that I understand what
your argument is there. Is your argument that in the
Document 110, the competent Gauleiter does not include all
the Gauleiter?

DR. SERVATIUS: Yes. Only those who were Reich Commissioners.
They received the information from the police agencies in
their capacity as agents of the State, while the other
Gauleiter who did not have State positions - and there a
number of them - were not informed. And another result is
that a Gauleiter in his capacity as Reich Defense
Commissioner did not inform his political subordinate, so
that the Kreisleiter did not receive any information about
this.

THE PRESIDENT: Do you say that the Gauleiter ceased to have
control over their Gaue unless they were appointed Reich
Commissioners and Reichstatthalter?

DR. SERVATIUS: The offices were separated, and instructions
only reached the Kreisleiter if they were Party
instructions, so that in the prescribed official channels in
any case, no -

THE PRESIDENT: That is not the answer to my question. What I
asked you was, are you saying that the Gauleiter who were
not Reich Defense Commissioners or Reichstatthalter had
ceased to hold any authority in the Gaue of which they were
Gauleiter?

DR. SERVATIUS: No, I do not mean to say that. I only want to
say that these instructions did not pass through the usual
channels. I have cited witnesses who testified that the
Kreisleiter actually did not receive any knowledge of these
instructions. It was different with the next instructions.
Later they could and should have received knowledge of these
instructions but not in the case of this directive of
Himmler's.

THE PRESIDENT: Go on.

[Page 45]

DR. SERVATIUS: The next is a letter. Bormann's circular of
30th May, 1944 (Document 057-PS) was intended to instruct
all political leaders to tolerate the lynching of airmen.
This is the result of Goebbels's newspaper article of the
preceding day, in which he addressed the population
directly.

For the defense it is essential to determine in which way
the Political Leaders co-operated, and whether these war
crimes were committed everywhere with their consent and
general approval. The contrary seems to be the case. The
three Gauleiter who testified before the Commission
concurred in stating that they realized the effects which
the circular might have, and that they did not forward it to
the Kreisleiter, contrary to the orders given them. These
are the witnesses Hoffman, Kauffmann and Wahl. The same was
testified to by the Gauleiter of Mecklenburg, Weser-Ems, and
Tyrol (Affidavits 61-E, 61-H and 61-G).

The fact that most of the Kreisleiter had no knowledge of
the Bormann decree indicates that the same was done in other
Gaue. So far as they received the decree, they did not
translate it into practice in their Kreis and did not
forward it because of its dangerous nature. I cite the
following witnesses in this connection: Meyer-Wendeborn for
Kreis Oldenburg; Kuehl, Kreisleiter of Ost-Hannover;
Biedermann for Gau Thueringen; Brueckmann, Kreisleiter of
Hessen-Nassau; Naumann, Kreisleiter of Saxony; Eber, of Gau
Westmark; Haus, Kreisleiter in Wetzlar.

The above-mentioned witness Hoffman belongs to those
witnesses who confirmed that they did not forward the
decree. An announcement concerning the admissibility of
lynching was made in his Gau on 25th February, 1945, that
is, nine months later. In connection with this matter it is
worthy of note for the Political Leaders that this witness
hesitated such a long time to act according to the desires
of Bormann and Hitler. During his testimony before the
Commission, the witness declared that he had withdrawn his
draft, and that the announcement was made without his
knowledge. In fact, in his Gau, the order was never carried
out (proved by affidavit of Scholtis).

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